Next Step: Punitive Damages

The United States Court of Appeals for the Eighth Circuit yesterday issued its opinion in Scroggin v. Wyeth, et al. The opinion is overwhelmingly positive for women and their families who have been injured by the hormone therapy. Donna Scroggins, like many women who took hormone therapy, suffered from breast cancer in both of her breasts and later had both of them removed.
In the underlying 2008 Arkansas trial, the jury found Defendants liable to the tune of $2.75 million in compensatory damages, and $27 million in punitive damages.

Judge Wilson struck down the punitive damages award, finding that some testimony by the Plaintiff’s regulatory (FDA) expert should not have been allowed, and that there was insufficient evidence of punitive damages. However, he let the compensatory damages stand.
On appeal, Defendants argued against the imposition of the compensatory damages, in particular trying to block the verdict with preemption, statute of limitations and improper admission of causation testimony. However, the Court of Appeals found the compensatory damages proper. Likewise, Plaintiffs appealed the vacating of punitive damages. The Court ruled that a new trial is warranted on punitive damages only, finding that the underlying court only considered each piece of evidence on punitive damages in isolation. However, according the Court of Appeals, clear and convincing evidence of Wyeth’s reckless indifference could be gleaned from Wyeth’s documents showing “repeated efforts over many years to undermine information and studies that attempted to show a breast cancer link.” The trial court must examine the totality of evidence which, considered together, may be sufficient to impose punitive damages. Particularly because “Wyeth . . . continued to engage in a practice of both inaction and mitigation.”
The opinion is instructive as to what irresponsible drug companies will do to preserve their profits. Hormone Therapy was an extremely profitable drug for Wyeth, so much so that they “equated the Premarin marketing efforts with a ‘Holy War, a Crusade.’” Wyeth responded to medical articles that sounded a clarion call about the dangers of the drugs by formulating plans to “mitigate the possible adverse effects” of the studies. Their overall plan was to divert attention: “[h]andwritten notes regarding the study state ‘keep US press busy’ and ‘dismiss/distract.’” This is about the time that Wyeth’s marketing folks began ghost-writing articles under the guise of medical literature. More about that practice here.
So, the case is remanded for a new trial on punitive damages. Though the next jury will not have the advantage of having sat through the liability phase, there is plenty of evidence to support Plaintiff’s claims that Wyeth sought to line its pocketbook at the expense of patients. And for that, they should be punished.